Additional Comments from Coalition Senators

Introduction

1.1Coalition members of the committee (Coalition members) recognise the need to maintain the integrity of our migration system, and support efforts to strengthen our legislative framework to enable the timely removal of non-citizens who have no lawful right to remain in Australia.

1.2While the introduction of the Migration Amendment Bill 2024 (the Bill) was prompted by the Australian Government’s loss in the YBFZ case in the High Court – which saw electronic monitoring and specified curfew conditions removed for all NZYQ-affected persons on Subclass 070 (Bridging (Removal Pending)) (BVR) visas –the government confirmed that urgent passage of the Bill was not required as theMigration Amendment (Bridging Visa Conditions) Regulations 2024 provided a stopgap mitigation for the consequences of the High Court case. Nevertheless, Coalition members acknowledge the Department of Home Affairs’ evidence that these amendments are necessary to support the framework for the continued monitoring of BVR holders.[1]

1.3Coalition members have carefully examined the Bill. During the course of the inquiry, assurances were provided by the Department of Home Affairs about its constitutionality. But we continue to hold significant concerns about the Albanese Labor Government’s rushed process and limited time for parliamentary scrutiny, which increases the risk of unintended consequences and drafting errors in the legislation.

Labor Government’s policy failures

1.4It is Labor Government’s successive policy failures that have brought us to this position in the first place:

1.5First, when the High Court handed down its ruling in the NZYQ case in November last year, the Albanese Labor Government was caught flat-footed without a contingency plan. As a result, this panicked government released into the Australian community a large group of criminal non-citizens with no plan to manage the very serious risk this cohort posed to community safety.

1.6We note that, on 14 November 2023, the former Minister for Home Affairs, the Hon Clare O’Neil MP, and the former Minister for Immigration, Citizenship and Multicultural Affairs, the Hon Andrew Giles MP, said in a joint statement that the released detainees were ‘subject to a range of strict, mandatory visa conditions’. But, as it turns out, no visas were in place at all.[2] According to documents obtained by the Coalition under Freedom of Information,[3] the Government released at least 83 detainees from immigration detention into the community without any visa conditions, meaning they were roaming free in the community completely unchecked.

1.7This was the first of many times the Coalition would help to clean up the government’s mess by facilitating the urgent passage of the Migration Amendment (Bridging Visa Conditions) Act 2024 on 18 November 2023 so that strict visa conditions could be imposed.

1.8Second, the former Minister for Immigration was forced to admit that invalid visas were issued to 148 people released from immigration detention because of a technical legal error. Consequently, our law enforcement agencies were forced to withdraw charges for alleged visa breaches against 10 NZYQ-affected individuals.[4]

1.9Third, in an extraordinary revelation, the Department of Home Affairs admitted that two murderers and 26 sex offenders in the NZYQ-affected cohort were not subject to electronic monitoring.[5] The former Minister for Immigration, in an interview, referred to a drone surveillance regime, which he was then forced to admit didn’t exist.[6]

1.10Tragically, it is the Australian community that has borne the very real consequences of the government’s dysfunction. In December 2023, it was reported that two of the detainees released from immigration detention had reoffended. One of them – a convicted sexual predator – is alleged to have indecently assaulted a woman at the motel he was staying at in South Australia.

1.11In Western Australia, a grandmother was allegedly bashed at the hands of a freed immigration detainee who had his ankle monitor removed.

1.12This came after repeated warnings from the Coalition for the government to move quickly to re-detain the highest risk offenders. Coalition members are seriously concerned that, nearly 12 months after the community safety order regime was rushed through the Parliament, the government (as at the date of the public hearing into this Bill) had still not lodged a single application for a preventative detention order, despite the former Immigration Minister Andrew Giles promising in May that six applications were nearly ready and a further 26 were in the advanced stage of preparation.

Constitutionality

1.13We note the Department of Home Affairs has told this committee that the present Bill, and the revised Migration Regulations, reflect the advice it has received from the Solicitor-General.[7]

1.14However, it should be noted that in the committee stage on the Migration Amendment (Bridging Visa Conditions) Bill 2023, Senator the Hon Murray Watt said, in relation to the amendments recommended by the Opposition to strengthen the community safety elements of the legislation:

We are satisfied with the constitutionality of the amendments that are being put tonight…We are willing to enact [the amendments], agree to them, and in some cases, move them, because we have as much confidence as we possibly can about their constitutionality.[8]

1.15This underlines the constitutional risks involved when bills are introduced and considered by the Senate in abbreviated timeframes where it is not practical for fulsome and detailed consultation to occur.

1.16Given the importance of protecting the community and the explanation provided by the Department of Home Affairs with respect to how the new community safety test addresses the constitutional issues, Coalition members acknowledge the imperative to seek timely passage of this legislation.

Operational Failings

1.17Coalition members are deeply concerned by evidence given by the Department of Home Affairs in this inquiry in which multiple crucial operational failings were revealed:

(a)under the revised Migration Regulations, only 10 NZYQ-affected individuals are currently subject to electronic monitoring, specified curfew or both, down from the 162 individuals subject to these conditions at the time the YBFZ decision was handed down;

(b)only 48 individuals in the NZYQ cohort have been reassessed for the imposition of electronic monitoring or curfew since the YBFZ ruling;

(c)neither the Minister for Home Affairs nor his office have asked the Department of Home Affairs how many of the 12 murderers or 66 sex offenders have had restrictions reimposed;

(d)there are child sex offenders free in the community who are not subject to electronic monitoring curfews, or any form of surveillance;

(e)two persons convicted for visa breaches under the Migration Act 1958 received suspended sentences despite the Parliament legislating mandatory 12-month minimum sentences last year;[9] and

(f)27 charges for visa breaches will be withdrawn and two convictions for visa breaches will be invalidated as a result of the government latest failure in the High Court.

1.18Sadly, these admissions are merely the latest in a litany of failures from the Albanese Labor Government on immigration and community safety, which include:

the former Minister for Immigration Andrew Giles’ Direction 99 debacle, which saw 97 criminal non-citizens avoid deportation from Australia because of the government’s capitulation to pressure from the New Zealand Government;

the Minister for Home Affairs humanitarian program on the run, wherein Tony Burke admitted he has been personally interviewing Palestinian families before granting them humanitarian visas. This comes after the government’s decision to grant 3000 tourist visas to Palestinian document holders in a warzone controlled by a proscribed terrorist organisation since 7 October 2023, more than any other likeminded country, and before those visas were referred to ASIO for security checks;

undermining Operation Sovereign Borders by overseeing a 21 per cent decrease in aerial flying hours and a 16 per cent decrease in maritime patrol days compared to 2020–21, which has seen at least 23 illegal people smuggling ventures carrying more than 450 illegal boat arrivals make the journey to Australia since the Albanese Labor Government came to power. Eight of those boats reached Australia’s territorial borders, two of which deposited their passengers and escaped undetected by Australian authorities – something that was almost unheard of in the decade before Labor took government.

Conclusion

1.19Coalition members support the Chair’s recommendation that the Senate pass the Bill and will seek to work constructively with government to fix the mess of the Labor Government’s own making.

1.20Coalition members also recommend the government accelerate its efforts to lodge community safety order applications with the courts to keep the highest-risk offenders behind bars and protect the Australian community.

Senator James Paterson

Shadow Minister for Home Affairs

Senator Paul Scarr

Deputy Chair

Footnotes

[1]Majority Report, paragraph 2.51, pp. 21–22.

[2]Hon Andrew Giles MP, Minister for Immigration, Citizenship and Multicultural Affairs, ‘Government action in response to NZYQ High Court decision, Joint Media Release, 14 November 2023, https://minister.homeaffairs.gov.au/AndrewGiles/Pages/government-action-response-nzyq-high-court-decision-14112023.aspx (accessed 26 November 2024).

[3]Hon Dan Tehan MP, Shadow Minister for Immigration and Citizenship, ‘Labor released at least 83 detainees into community without visa’, Media Release, 15 August 2024, https://dantehan.com.au/2024/08/15/labor-released-at-least-83-detainees-into-community-without-visa-2/ (accessed 26 November 2024).

[4]Hon Andrew Giles MP, Minister for Immigration, Citizenship and Multicultural Affairs, ‘Doorstop interview, Coolangatta’, Transcript, 13 March 2024, https://minister.homeaffairs.gov.au/AndrewGiles/Pages/doorstop-interview-coolangatta-13032024.aspx (accessed 26 November 2024).

[5]Senate Legal and Constitutional Affairs Legislation Committee, 2024–25 Budget Estimates, 29 May 2024, Committee Hansard, pp. 45 and 55.

[6]Paul Karp, ‘Andrew Giles backs away from claim drones being used to track released immigration detainees’, The Guardian, 3 June 2024,https://www.theguardian.com/australia-news/article/2024/jun/03/immigration-detention-detainees-released-drones-tracking-claims-andrew-giles (accessed 26 November 2024).

[7]Ms Clare Sharp, Group Manager Legal, General Counsel, Committee Hansard, 21 November 2024, pp. 28–29.

[8]Senator the Hon Murray Watt, Minister for Agriculture, Fisheries and Forestry and Minister for Emergency Management, Senate Hansard, 16 November 2023, pp. 5835 and 5839.

[9]Senator James Paterson, Senate Hansard, 16 November 2023, p. 5835.